Understanding the Protection that “Plant Varieties and Farmer’s Rights Act of 2001” Covers

India is an agrarian country; with agriculture being the primary source of livelihood for about 58% of its population. Hence, the need to protect it becomes our duty by default, and for which our Indian government has enacted a powerful framework called “The Protection of Plant Varieties and Farmers' Rights (PPV&FR) Act, 2001” which we will be seeing in detail in this article.

Plant Varieties and Farmer's Rights Act of 2001 - Introduction

As a means of ensuring plant varieties, plant breeder and farmers' rights are protected and to encourage the development of new plant varieties, it has been considered necessary to recognize and protect the rights of farmers in respect of their contributions to the conservation, improvement, and availability of plant genetic resources that can be used to develop new varieties of plants at any time. The Indian government gave a green signal to an act named - “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) in 2001 adopting the sui generis system.

There are ample arrangements for safeguarding the interests of open division reproducing foundations and farmers under this Indian enactment, which is contrary to the International Union for the Protection of New Varieties of Plants (UPOV), 1978. Besides taking into account commercial plant breeders and farmers' commitments to plant breeding, the Act also provides to implement TRIPs -Trade-Related Aspects of Intellectual Property Rights, (an international legal agreement between all the member nations of the World Trade Organization (WTO) that came into force in 1995), in a way that supports the specific socio-economic interests of several partners, including private, open, and review organizations, as well as farmers who are required to acquire land.

The Objectives of the Act

An act is enacted to serve a purpose which is mostly the protection of rights from something or someone. Similarly, the Protection of Plant Varieties act was put into action to give effect to the following objectives:

• To create a credible and comprehensive framework that helps protect plant assortments, the privileges of farmers, and plant reproducers.
• To promote agricultural development, protect the rights of plant breeders, and stimulate public and private sector investment in R&D to develop new plant varieties.
• To facilitate the growth of the seed industry in the country that will ensure the availability of top-notch seeds and planting material to the farmers.
• To promote the development and registration of new plant varieties.
• To recognize and protect farmers' rights in respect of their contributions made at any time in conserving, improving, and making available plant genetic resources for the development of new plant varieties.

Implementation of the Act

The Department of Agriculture, Cooperation and Farmers Welfare, and the Ministry of Agriculture and Farmers Welfare came together on 11th November 2005 to establish the Protection of Plant Varieties and Farmers' Rights Authority and to implement its provisions.

The authority comprises a Chairperson who is the Chief Executive of the Authority and other than the Chairperson, the Authority has 15 members, as notified by the Government of India (GOI) and they are as follows:

• Eight ex-officio members representing various Departments/ Ministries
• Three from - State Agriculture Universities (SAUs) and the State Governments
• One representative each for farmers, tribal organizations, seed industry, and women's organizations associated with horticultural activities, nominated by the Central Government.Note: The Registrar General in the authority is also the ex-officio Member Secretary of the Authority.

Now, let’s take a look at the general functions the authority is responsible for:

• Registration of all types of varieties be it a newly-discovered one, essentially derived varieties (EDV), or extant varieties;
• Framing DUS (Distinctiveness, Uniformity, and Stability) test guidelines for new plant species;
• Developing characterization and documentation of registered varieties;
• Carrying out compulsory cataloging facilities for all plant varieties;
• Conducting documentation, indexing, and cataloging of farmers' varieties;
• Recognizing and rewarding farmers, the community of farmers, particularly tribal and rural communities engaged in conservation and improvement;
• Conserving the genetic resources of economic and wild plants;
• Keeping the National Register of Plant Varieties as well as National Gene Bank up-to-date and well-maintained.

How and What Does the Act Protect?

Breeders’ Rights

The act allows the Breeders to have exclusive rights to produce, sell, market, distribute, import, or export the protected variety or fare the range under Section 28 (1) of the Act. It also allows the breeder to appoint his replacement or his specialist or licensee to implement civil remedies in case of infringement of rights.

Researchers’ Rights

The Act permits researchers to use any of the registered varieties for experiment and research purposes mentioned under Section 30 of the Act. But, this Section also states that ‘Nothing contained in this Act is prohibited to (a) any individual from using any assortment enrolled under this Act for directing investigations or exploration; and (b) When a range is used as an underlying source of a diverse assortment by a person and has to be used repeatedly, approval from the raiser is a must because the parental line of the range, is important to the development of such a newly created range.

Farmers' Rights

• A farmer who develops a new variety is entitled to registration and protection in the same manner as a breeder;
• Farmers' variety can also be registered as an extant variety [Chapter VI of the Act];
• A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety mentioned under Section 39(1)(i)–(iv) of the Act in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;
• A farmer who is occupied with the protection of hereditary assets of landraces and wild family members of monetary plants and their improvement through choice and conservation is eligible for recognition and rewards from the Gene Fund, given the material so chosen and protected is used in assortments registered in accordance with the Act as a contributor of qualities.
• A farmer is eligible to receive compensation if the plant variety fails to perform as expected under Section 39 (2) of the Act, 2001.
• The farmer shall not be charged or forced to pay any proceeding fee before the Authority or Registrar or the Tribunal or the High Court under the Act

Communities Rights

Under Section 41 (1) of the act, any person/group of persons/governmental or non-governmental organization (whether actively engaged in farming or not) is eligible to file a variety in any notified center on behalf of any village/local community in India and can also claim for its contribution to the evolution of any variety. If the claim is found true after verification, it shall report its findings to the Authority. Further, as per the report, the Authority will carry out the necessary procedures and by order, grant the sum of compensation for which the claim has been made.

The Eligibility and the Procedure of Registration of Varieties

Under Section 16 of the Act, an application for the registration of a plant variety can be filed by any of the following who have developed plant varieties by the use of their intellectual capabilities to boost the agricultural development in the country,

• Breeder;
• The successor of the breeder;
• An assignee of the breeder;
• Farmer, group or community or
• Any University or publicly funded agricultural institution.

Now, for a plant variety to be eligible for registration under the Act, it must fulfill the criteria of Distinctiveness, Uniformity, and Stability (DUS). The Central Government issues notifications in official Gazettes specifying the genera and species for registration of varieties and so far, 157 crop species have been notified for registration, the list of which you can access here.

Moreover, there are also "Guidelines for the Conduct of Species-Specific Distinctiveness, Uniformity, and Stability" tests or "Specific Guidelines" for individual crop species developed by the PPV&FR Authority which you can go through for more information.

Coming to the plant varieties that can be protected through registration under the Act, the following are the types one can register.

New Variety

Newly discovered varieties i.e. varieties that do not exist naturally.

Essentially Derived Variety (“EDV”)

Varieties that have predominantly been derived from an initial variety but are different from new varieties and yet fundamentally similar to the initial variety to such an extent that the characteristic that distinguishes them is considerably hard to discern which makes their identification process very tiring.

• Generally developed through (non-exhaustive list):
• Genetic Engineering
• Mutation
• Tissue Culture Derived
• Back Cross Derivative
• Any other (Ploidy change etc.)

Extant Variety

• Due to some reason, certain varieties that are already in existence require warrant protection. These include:
• Varieties marked under Section 5 of the Seeds Act, 1966.
• Farmer’s variety
• Varieties in Common Knowledge(“VCK”)
• Varieties in Public Domain

Farmers’ Variety

Varieties that have been traditionally cultivated or evolved by farmers in their field and their existence is a matter of common knowledge within the community.

For the application for registration of plant varieties, there is a structure to be followed the forms and details of which you can find here.

You also don’t have to worry about finding DUS test centers because a list of them is also mentioned on the official website of the Protection of Plant Varieties and Farmers' Rights Authority.

Other Provisions of the Act

Certificate of Registration

After registration, the applicant will receive a certificate that will be valid for nine years in the case of trees and vines and six years in the case of other crops. It can be reviewed and renewed for the remaining period on payment of renewal fees. The only condition is that the total period of validity for both trees and vines shall not exceed eighteen years from the date of registration of the variety, fifteen years from its notification date under the Seeds Act, 1966, and in other cases fifteen years from the registration date.

Benefit Sharing

Section 26 of the act provides benefits sharing and the claims can be submitted by the citizens of India or firms or non-governmental organizations (NGOs) formed or established in India. The breeder will deposit an amount in the Gene Fund of the claimant, depending upon the extent and nature of the use of genetic material in the development of the variety along with its commercial value and demand in the market of the variety. The Authority also publishes the contents of the certificate in the PVJI to invite claims for benefits sharing.

Plant Varieties Protection Appellate Tribunal

Earlier, the Intellectual Property Appellate Board (IPAB) - an appellate body established by the Indian government for hearing and resolving appeals against the registrar, had exclusive jurisdiction to take action against appeals related to the orders or decisions of the Registrar of Authority regarding the registration of variety, agent, or licensee as well as the orders or decisions of Authority relating to benefit sharing, revocation of compulsory license, and payment of compensation, but, due to its recent abolition with the President of India's promulgation of the "Tribunal Reforms Ordinance, 2021" it was declared that all appeals under Section 56 of the Act shall lie at the High Court instead of at the PVPAT and all proceedings pending before the PVPAT shall stand transferred to the High Court.

Bottom Line

The Protection of Plant Varieties and Farmers’ Rights Act, 2001 is indeed a game changer for those into agriculture but complete knowledge of it is necessary or else things may not fall in your favor. Hence, it is advisable to seek the help of professionals like us Parker and Parker Co. LLP, to protect what rightfully is yours.